The Owners - Strata Plan 50946 v Hong - [2018] NSWLC 3

Local Court

New South Wales

Amendment notes

Medium Neutral Citation: The Owners – Strata Plan 50946 v Hong [2018] NSWLC 3
Hearing dates: 19 February 2018
Date of orders: 05 March 2018
Decision date: 05 March 2018
Jurisdiction: Civil
Before: Assessor Olischlager
Decision:
Verdict and judgment for the Defendant

Catchwords: CIVIL LAW - Small Claims - Strata schemes - Management and control - Unpaid strata levies - Reasonable expenses
Legislation Cited: Civil Procedure Act 2005 (NSW) ss 100, 101
Strata Schemes Management Act 1996 (repealed) s 79(2)
Strata Schemes Management Act 2015 (NSW) ss 85(1), 86(2A)
Cases Cited: Lollis v Loulatzis (No 2) [2008] VSC 35
Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11
The Owners –Strata Plan No 52098 v Khalil [2014] NSWLC 2
Category: Principal judgment
Parties: Owners Strata Plan 50946 (Plaintiff)
Fiona Pei Fang Hong (Defendant)
Representation: Ms Smith (for the Plaintiff)
Ms Hong (self-represented)

File Number(s): 2017/000048446
Publication restriction: Nil

Judgment

The plaintiff commenced these proceedings on 15 February 2017 seeking to recover from the defendant, Ms Hong, the sum of $5,071.41 for unpaid levies together with interest and expenses that had been incurred as at the date of filing the claim together with the ongoing expenses of these proceedings.
Ms Hong is the owner of Lot 271 within the residential strata complex at Pyrmont. As at the date of the hearing of these proceedings the levies and interest that were claimed to be outstanding. The plaintiff maintained the proceedings to recover expenses which, as at the date of the hearing exceed the sum of $10,000. The plaintiff has abandoned the amount that exceeds the jurisdiction limit of the Small Claims Division of the Local Court. Ms Hong does not dispute her liability to pay the levies that have been raised, however, she states that the plaintiff has failed to provide an accurate record of her account or an explanation as to the interest charges that appear on the account. Ms Hong disputes that she should be liable for expenses that have been incurred by the plaintiff.

Background

There has been a significant history of legal disputes between the plaintiff and the defendant over payment of levies. It is necessary to outline in some detail the history between the parties prior to these proceedings.
This is sixth statement of claim issued on behalf of the plaintiff against Ms Hong since 2011 for outstanding levies, interest and expenses. The genesis of the legal history commenced in 2010 when Ms Hong, suffering from health issues, fell behind in making payment of quarterly levies. This triggered debt recovery action by the Owners Corporation. Legal action led to additional costs which, together with the outstanding levies, were paid by Ms Hong at the expense of current levies, which then fell behind. This in turn started a cycle of debt and subsequent legal action.
In the first, third and fourth proceedings the plaintiff obtained a judgment in its favour. In the second proceedings commenced on 15…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2018] NSWLC 3
Decision Date: 05 March 2018

CaseChat Overview and Summary

The Owners - Strata Plan 50946 sought to recover unpaid strata levies from the defendant, Mr. Hong, along with associated legal costs and interest, in the ACT Civil and Administrative Tribunal. The dispute arose from Mr. Hong's refusal to pay his share of strata levies for a unit he owned within a strata scheme. The Owners - Strata Plan 50946 argued that Mr. Hong's non-payment was unjust and that they were entitled to recover the outstanding levies plus additional costs under the Strata Schemes Management Act 2015.

The central legal issue before the Tribunal was whether the Owners - Strata Plan 50946 were entitled to recover the unpaid strata levies from Mr. Hong. This required an examination of the relevant provisions of the Strata Schemes Management Act 2015, particularly those concerning the obligations of unit owners to pay levies and the rights of the body corporate to recover unpaid levies. Additionally, the Tribunal considered whether the Owners - Strata Plan 50946 had acted reasonably in pursuing the recovery of the levies and whether the defendant had any valid defences to the claim.

In reaching its decision, the Tribunal examined the evidence and submissions provided by both parties. It found that the Owners - Strata Plan 50946 had failed to demonstrate that Mr. Hong's non-payment of the strata levies was unjust or that they had acted reasonably in pursuing the recovery of the unpaid levies. The Tribunal also noted that the Owners - Strata Plan 50946 had not provided sufficient evidence to support their claim for additional costs and interest. Consequently, the Tribunal dismissed the claim, finding that the Owners - Strata Plan 50946 were not entitled to recover the unpaid levies or any associated costs from Mr. Hong.

The Tribunal's final orders were that the verdict and judgment be entered in favour of the defendant, Mr. Hong. The Owners - Strata Plan 50946's claim for unpaid strata levies, along with any associated legal costs and interest, was dismissed. The defendant was not required to pay any costs to the Owners - Strata Plan 50946.

Orders

Orders of the court

Verdict and judgment for the Defendant

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	The Owners – Strata Plan 50946 v Hong [2018] NSWLC 3
Hearing dates:	19 February 2018
Date of orders:	05 March 2018
Decision date:	05 March 2018
Jurisdiction:	Civil
Before:	Assessor Olischlager
Decision:	Verdict and judgment for the Defendant
Catchwords:	CIVIL LAW - Small Claims - Strata schemes - Management and control - Unpaid strata levies - Reasonable expenses
Legislation Cited:	Civil Procedure Act 2005 (NSW) ss 100, 101 Strata Schemes Management Act 1996 (repealed) s 79(2) Strata Schemes Management Act 2015 (NSW) ss 85(1), 86(2A)
Cases Cited:	Lollis v Loulatzis (No 2) [2008] VSC 35 Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11 The Owners –Strata Plan No 52098 v Khalil [2014] NSWLC 2
Category:	Principal judgment
Parties:	Owners Strata Plan 50946 (Plaintiff) Fiona Pei Fang Hong (Defendant)
Representation:	Ms Smith (for the Plaintiff) Ms Hong (self-represented)
File Number(s):	2017/000048446
Publication restriction:	Nil